Employer liability for accidents due to bad weather

The issue

In severe weather, the risk of slips and falls (mostly on ice but not necessarily restricted to it) is ever-present. Whilst avoiding hazardous conditions is an option for members of the public, what happens if you have employees who must travel in such conditions and whose work may expose them to danger?

A recent Scottish court case examined the liability of employers for injuries sustained by their employees if no risk assessments are made or personal protective equipment is provided. In Kennedy v Cordia (Services) LLP, an employer’s insurers were found to be liable for a home carer’s fractured wrist, caused when she slipped and fall on an icy path. Her employers had failed to carry out a suitable risk assessment and had not provided her with suitable protective equipment.

The facts

On 18th December 2010, Kennedy was making a visit as part of her employment with Cordia. The path to the property was covered in snow and ice and had not been gritted or salted. Kennedy slipped and fractured her wrist.

In court, a health and safety expert stated that in his opinion, Cordia had not adequately assessed the risk, nor had they provided the correct work equipment – in this case, a clip-on attachment for her shoes.

This meant that Cordia was in breach of Regulation 3 of the Management of Health & Safety at Work Regulations 1999 and Regulations 4 and 10 of the Personal Protective Equipment at Work Regulations 1992.

Cordia’s insurers appealed this decision to the Extra Division, part of the supreme civil court in Scotland. They said that the court had made a mistake when they accepted the health and safety expert’s evidence, since it was only his personal view. The Extra Division agreed and ruled the evidence inadmissible. The Extra Division also said that Kennedy was not ‘at work’ when she was travelling between clients, and when the accident occurred, she had not reached the address of her next visit. Therefore, the Personal Protective Equipment at Work Regulations did not apply.

Unsurprisingly, Kennedy decided to appeal and took the case to the Supreme Court. They ruled in her favour, overturning the decision of the Extra Division. They said that the health and safety expert’s evidence was admissible; he had been expressing his opinion but he had the necessary experience to explain the benefits of anti-slip attachments. Besides, an experienced judge would be able to decide on the validity or otherwise of evidence and come to their own decision on legal questions.

The Court also heard that travelling between the homes of clients was an integral part of Kennedy’s work and therefore the PPE regulations applied.

If the employer had carried out a sufficient risk assessment, they would have realised that footwear attachments were available. Kennedy had already stated that if such attachments had been provided, she would have worn them, so it was reasonable to infer, the Court said, that their non-provision contributed towards the accident.

Rradar recommends:

Start with the risk assessment (as well as taking a look at the accident/incident book to see if it highlights a trend)

1. Consider which employees the task will affect and enlist their help in compiling the risk assessment

2. Work together – what are the real risks? Identify them and record this.

3. What could go wrong while carrying out this task?

4. What is the level of harm that could be caused?

5. How can you remove or reduce the risk? Again, consult with the ones who are affected by the risk.

Once control measures have been introduced, staff will need to be trained, supervised and monitored.

In the Kennedy case, all that would have been required would be to include Personal Protective Equipment (PPE) in the control measures on the risk assessment.

Most reputable PPE suppliers will give all kinds of options for footwear and the type of surface on which they can be used.

Once the PPE has been chosen, the employer could order the items and provide training before issuing them to the employees (free of charge, under Section 9 of the Health and Safety at Work Act).

PPE should always be seen as the last line of defence – not the first!

Consider suggesting clothing e.g. thick trousers, coat, gloves, hat so in the event of a fall, the effect will be minimised.

Ask employees to report all slips, trips and falls. Once these have been reported, investigate – you may be able to amend the risk assessment and reduce the risk of falling by adding further control measures.

Slips, trips and falls are often viewed as funny due to the popularity of certain TV shows and in fact are seen as a source of entertainment. However the reality is anything but entertaining:

• There is very little protection for the brain other than a thin layer of bone (skull)

• Think of a fall – it is like dropping your head onto the floor from head height (can you imagine what that would do to your laptop, even if it is in a carry case?).

• Slips, trips and falls have been the cause of fatalities, fractured bones, disabilities and – in certain cases – result in life-changing injuries.